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Ius Humani. Law Journal

iushumani
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Published by Universidad de Los Hemisferios

ISSN : 1390440X EISSN : 13907794 DOI : -

Core Subject : Humanities, Art, Social,

Arts Humanities Law, Crime, Criminology & Criminal Justice

Ius Humani Law Journal is a platform (iushumani.org) open to researchers around the world. It contains articles in all languages, where writers publish original studies on persons rights (natural, human or constitutional) and about the effective procedures for the protection of rights. The studies are viewed both form the philosophical perspective and the perspective of the fundamental juridical principles. Ius Humaniâ€™s purpose is the diffusion of knowledge, and the promotion of debate on different juridical perspectives.

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Articles 10 Documents

Search results for , issue "Vol 4 (2014)" : 10 Documents clear

La silla vacía y el dilema de la participación ciudadana en el Ecuador José Luis Castro Montero
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

This article describes, explains and interprets through an empirical dataset analysis, how the constitutional mechanism “empty chair” operates. Initially, the conceptual and normative foundations for the institutional configuration of this mechanism are presented which in turn are forming the basis for the demonstration of its functioning among descentralized local governments (DLG) of Pichincha between 2010 and 2013. Based on the occupants’ voting dynamics, the performance of the empty chair within a setting of participatory democracy is evaluated. Both documentary analysis and semiestructured interviews are used to gather information. The conclusions suggest that highly dominant political parties among local governments may influence the occupants’ votes in the empty chair. In this context, most citizens will have low understanding of their political rights and little awareness of their responsibilities. The results also show that the “empty chair” does not necessarily strengthen the representation of civil society forces in local governments with dominant party majorities as well as in those governments where the “empty chair” is appointed in a closed way.

La relación entre moral y derecho en el paleopositivismo y el positivismo Jurídico Jorge Guillermo Portela
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

In this paper, a historical chronicle of relations between morality and law´s done, as they have been conceived by legal positivists, since Austin´s developments until Hart´s propositions; most of them have been put forth since 1960, in the middle of XX Century. It is interesting note that, from a position that deny any possibility of a metaphysics, in which a value-neutrality was postulated, as it happened with Austin´s and Kelsen´s thesis, then was developed the idea that a link between morality and law is not only possible, but even necessary. The author has come to the conclusion that last Hart´s admission of a “soft” positivismo including a certain moral idea has made possible to obtain a stream of fresh air for the general theory of law and one contribution for the protection of the human rights. This has let a true advance in contemporary juridical ideas development.

Sembrar Derechos. Reconfiguración del trabajador rural como sujeto de derecho, en los procesos de integración regional y universal Daniela Verónica Sánchez Enrique
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

This paper analyzes the reform of rural labor in Argentina, from the theoretical debate linked to the reconfiguration of the worker as a subject of universal rights and the transformation of demos, opposite the supranational rules generated by the processes of regional integration and globalization.The aim of this study is to analyze the impact of this process, rules and institutionally by the degree of incorporation of international human rights standards in the national legislation related to the new regime of Argentine agricultural work.The structure of this analysis contains three sections. In the first, the theoretical debate on the transformation of citizenship, caused by the tension between national legislation and international rights, to rethink the extent influences the transformation of the legal status of the worker, the subject develops subject to national law to regional and universal right. The second will make a brief analysis of some supranational law which manifests the internationalization of the rights of workers. Finally, we discuss the strategic points of the last reform of the Argentine rural work, trying to analyze the main changes. The selected for the development of this proposed methodology consists of theoretical analysis of the transformation of demos and regulations for the new regime of Argentine farm work (National Law 26,727), which will be supplemented by referring to bodies of Latin American regional integration and International Treaties on Human Rights, specifically on Economic, Social and Cultural Rights (ESCR).

La intangibilidad de las acciones privadas de las personas Mauricio Maldonado Muñoz
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

This article aims to approach a warranty called: inviolability of private actions of individuals. The right to privacy, in its content and scope, is aboard from a widespread vision. Principally, the issue about the limits of the State interventions and regulations it’s analyzed, from a position that denies the theory of communitarianism. In general, this article conceptualize the most important issues about freedom, law and human virtues, rights of others and public morals; concreting this topics with its entailment with other human rights related to the right to privacy. The central idea of this paper is to demonstrate the mainstreaming or transversality of the warranty (inviolability of private actions of individuals), involving transcendental issues for philosophy of law, legal theory and, of course, human rights.

La protección jurídica del medio ambiente en la jurisprudencia de la Corte Interamericana de Derechos Humanos Valerio de Oliveira Mazzuoli; Gustavo de Faria Moreira Teixeira
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

This article examines the interconnections between environmental issues and the protection of human rights, in a process that began in the United Nations Conference on the Human Environment (Stockholm, 1972) and has been developed by the greening of the regional human rights systems. In the Inter-American system the article 11 of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights of 1988 — the Protocol of San Salvador — guarantees the right to a healthy environment. However the American Convention (on its arts. 3-25, 44-51 and 61-69) and its Additional Protocol (on its arts. 8, 13 and 19.6) only allow the submission of individual petitions to the Inter-American Commission and the possible acting of the Inter-American Court, in complaints containing alleged violations of civil and political rights, trade union rights and the right to education. Despite the lack of devices that are capable to ensure an effective protection to the right to a healthy environment, by itself, the Inter-American Court has demonstrated the greening of the human rights, which means, in other words, that it is quite possible to protect environmental issues by the demonstration of its interconnections with civil and political rights that are directly protected by the inter-American system. Therefore, it is necessary to understand the contributions of the jurisprudence of the Inter-American Court in the strengthening of the civil and political rights in cases related to environmental issues.

Bioetica giudiziaria in Italia: note critiche su una sentenza recente in tema di protezione della vita prenatale Claudio Sartea
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

Inspired by a recent judgment of the Italian Court of Cassation, this paper presents a summary of the essential references of fact and law around the case, and offers some critical reflections on the topic, very conflictive, of the legal personality of the unborn. The reasoning inevitably turns toward the more general discourse concerning the foundation of individual rights, oscillating between liberty (voluntaristic and subjectivist outlook) and dignity (objectivist, and conditioned by the precautionary principle). On the basis of the preferred option, we will have a different conception of the role of biolaw in technologically advanced societies. After the presentation of the judicial case and the main legal arguments of the decision (first chapter), the article explores the crucial issue of legal personality of the unborn, from the dual perspective of law and philosophy of law, in particular justifying the equation that identifies human being and person (second chapter). Subsequently, the third chapter offers a reflection on the alternative between dignity and liberty in order to the foundation of individual rights, arguing the preference for a dignitary perspective: in fact, this defends better the vulnerable people and then really safeguards the equality. The last chapter before the conclusion connects the bioethical discussion with the consideration of task of biolaw and of the jurist in contemporary societies.

Neoconstitucionalismo negativo y neoconstitucionalismo positivo Giovanni Battista Ratti
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

The term “neoconstitucionalism” is quite ambiguous: contemporary culture uses it to denote such as heterogeneous things as a form of state, a policy of judicial activism, a theoretical account of contemporary legal systems, a kind of legal methodology, and ideological adherence to the law. This paper focuses on the aspects related to judicial policy, legal theory and legal methodology, by emphasizing two possible perspectives. The first one called negative, that delineates such a prismatic conception of law as a set of oppositions to the theses defended by predominant legal theories. The second one is dubbed positive, since it claims to having identified a whole series of “new discoveries” about contemporary legal systems. The positive version is characterized by eight points: (1) the law of constitutional state is a combination of rules and principles, (2) rules and principles are liable to bring about a systematic set of norms, (3) contemporary constitutions incorporate moral values, so that they have created a relevant connection between law and morality, (4) the incorporation of moral values in the constitution means that the interpreters must construe the constitutional provisions by a moral reading, (5) any legal norm is defeasable, (6) some legal standards require balancing, as opposed to traditional subsuntive reasoning, (7) by holistically interpreting legal provisions, judges can decide any dispute whatsoever, (8) legal norms cannot have any content, since their content is eventually determined by moral judgments. The paper winds up illustrating some of the achievements and the shortcomings of each kind of neoconstitutionalism.

The right to private property and economic freedom Santiago M. Castro Videla; Santiago Maqueda Fourcade
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

Este artículo ofrece diversos elementos legales, filosóficos y económicos para una teoría general del derecho de propiedad y libertad económica, que permita explicar por qué es un derecho fundamental. En primer lugar, plantea una visión unificada del derecho de propiedad privada y libertad económica, el que debe distinguirse analíticamente de los distintos derechos de propiedad susceptibles de reglamentación y expropiación estatal. En segundo lugar, explica, desde la teoría tomista del derecho natural, en qué sentido este derecho es un derecho natural secundario. En tercer lugar, señala, desde la teoría austríaca del proceso de mercado, cómo la protección del derecho de propiedad privada y libertad económica da lugar a un proceso virtuoso que genera mayor desarrollo, reducción de la pobreza y paz social. Y finalmente, explica también cómo la violación de dicho derecho genera los efectos contrarios: subdesarrollo, pobreza y conflicto social.

Transformaciones judiciales en el Ecuador: El equilibrio de poderes visto a través del análisis de redes sociales Efrén Ernesto Guerrero
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

This text explores the balance of powers in the Republic of Ecuador through Social Network Analysis (SNA). It argues that formal and informal ties among political system’s actors can be affected as a result of an improvement action within a part of the State. The Article recounts three essential elements: the theoretical apparatus of the balance of power in the State, a summary of the reform actions in the Ecuadorian juridical system, and an analytical contrast between governance models of the Ecuadorian State after the reform of the judiciary, conducted between 2010 and 2014. For this purpose, a comparison of the models of balance by using social network analysis is proposed; thereof a series of statistics that will show the possibility of changes in the capabilities of horizontal accountability of the Judiciary are obtained. This data show an evidence base that small changes in the fabric of government relations have extensive quantitative consequences on the balance of powers, and appear as heuristics of change in the dynamics of political power. It concludes indicating that reforms of the judicial system have created a more efficient system but, according to the obtained data, centrality of power can generate unwanted effects in public administration and in the structure of power control of the State.

La nozione di autorità. Suggestioni da Alexandre Kojève Chiara Ariano
Ius Humani. Jornal do direito Vol 4 (2014)
Publisher : Universidad Hemisferios

Following the recent discovery of the volume by A. Koiève entitled The Notion of Authority – whose existence was previously known from a footnote in Esquisse d’une phénoménologie du droit – this article reviews the notion of authority using a phenomenological approach. The author starts from a conceptual analysis of the theories of authority by distinguishing 4 “simple‟ or “pure‟ categories (some analogues of the weberian types): – the theological or theocratic theory, according to which the only and primary authority belongs to God, all the others descending from it; – the Platonic theory, centred on Justice; – the Aristotelian theory, according to which the authority belongs to those who know and are able to foresee; – the Hegelian theory, which reduces the notion of authority to the relationship between sir and servant, thereby putting the emphasis on struggle and the recognition of a winner. According to Kojève, only the latter category “has received a complete philosophical elaboration, one that goes beyond a simple phenomenological description and uses metaphysical and ontological analyses.” However, the radical narrowness of man – on which Kojève basis its atheism and rejects the link between authority and transcendence – does not completely hides, according to the author of the article, traces of an anthropology where infinity appears again.

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